Advance Directives & Guardianship Rights

Most people talk to family or friends before making important decisions. People with disabilities are no different. Family members and friends can give guidance and support to an individual, avoiding the need for a guardian. For example, family members and friends can help point out risks, advantages, and consequences of a decision. Family and friends can explain these things in a way that the individual can understand, giving the individual a basis for making the choice.

Advocates play an important role in assisting individuals with disabilities in handling their affairs. Advocates may be volunteers or professionals who are matched with individuals with disabilities. Organizations like a local ARC or Community Mental Health (CMH) may have advocates who can serve as guides and advisors with tasks like paying bills, making purchases, and choosing service providers. With the right supports, many individuals may be able to avoid guardianship.

A power of attorney is a legal document in which one person (principal) gives decision-making power to another person (agent). Unlike a guardianship, the court is not involved. A power of attorney can only be used if the principal understands what they are signing. Powers of attorney can be used to officially allow someone else to act in place of the person with a disability. For example, the agent could sign an apartment lease or set up a bank account on behalf of the person with a disability. The principal can revoke a power of attorney.

You can do some of these forms yourself online through Michigan Legal Help.

A designation of patient advocate is a special type of power of attorney. It is a tool that gives someone else the power to make medical decisions if an individual cannot make those decisions for themselves. A person can include instructions about medical treatment in a designation of patient advocate and can change or revoke it at any time. A designation of patient advocate can only be signed if the individual understands what they are signing.

You can do some of these forms yourself online through Michigan Legal Help, or through legal services by calling 1.888.783.8190.

A trust is a legal tool that puts a person or an organization (like a bank) in charge of someone else’s money. If money is the main reason for thinking about a guardianship, a trust can be a good alternative. If properly designed, a trust gives parents or others a place to put property or money so that it can be managed for the good of the individual. Since the individual does not own the property or money in the trust, the trust does not generally affect eligibility for governmental benefits like SSI. Trusts are complicated tools that should be designed on an individual basis by an experienced attorney.

If an individual’s only source of income is SSI, social security, or other federal supplement, a representative payee may be a helpful alternative to guardianship. A representative payee is a person who is given the authority to receive and manage federal benefits for someone who cannot manage the benefits on their own. To do this, an application needs to be submitted to the Social Security Administration or other federal benefit agency, such as the U.S. Department of Veterans Affairs.

Banks can help keep an individual’s money safe. Here are two kinds of accounts to consider, but different banks may use different names:

1. Cosigners: Some banks will set up accounts where at least two people need to sign to make a withdrawal. No person can withdraw money without the other person signing off.
2. Limited Accounts: In a limited account, only a certain amount of money is made available at a time.

This way, the individual does not need a second person to sign off on the withdrawal, but access to the money is limited by the bank.

Not all banks are willing to make these special accounts, so you may need to shop around. If these accounts do not fit your needs, you and your bank may be able to design a program that will.

SDM is a process or plan for supporting a person with a disability to identify and implement their own decisions with help from family, friends, and professionals that the person chooses to help him/her. This plan can be formal or informal with written documentation of the plan or not. What SDM looks like or includes is different for each person and should be designed and directed by the wishes and goals.
Some links for additional for additional information on SDM:

• National Resource Center for Supported Decision-Making
• Supported Decision Making & Problems with Guardianship By the ACLU
• Center for Public Representation – Supported Decision Making Resources
• Michigan Developmental Disabilities Council - Fact Sheet on SDM
• Supported Decision-Making Toolkit
• Thinking Ahead Road: A guide for keeping your money safe as you age.